Complete reference: GERMAIN, Michel and MAGNIER, Véronique, Traité de droit des affaires - Les sociétés commerciales (Law Treaty - Commercial companies), 21th ed., LGDJ - Lextenso éditions, Paris, 1054 p.
From 2006 to 2009, she was director of the Centre d’études en droit économique (Economic Law Research Centre). Professor Crête’s works and teaching revolve around corporate law, financial markets regulation and corporate governance. She is currently in charge of a research study on assets, wealth and estate management’s legal framework. Ever since the creation of the Collège des administrateurs des sociétés (College of corporate administrators) Raymonde Crête participates in the institution’s training of corporate directors on governance issues.
The European Parliament, which according to the co decision procedure, must vote the text of directive, until the Council of European Ministers doing it, examined the draft of the Directive on Basel III standards on May 14, 2012. On prudential standards, he planned to leave the States free to adopt higher minimum requirements. In addition, it imposed that the bonus paid to the CEO didn't attain a higher price than their fixed compensation.
The ‘Autorité des Marchés Financiers’ (French Financial Markets Authority) published a guidebook on the information to be provided in listed securities’ registration documents.
Speaking to the press is a way for the Regulator to reach everyone, including policymakers, European institutions, and fellow Regulators who also seek to compete for space in the digital area.
As he reported: "Nous arrivons aujourd’hui, avec l'irruption du numérique, à un acte 2 de la régulation. Il y a 20 ans, on est passé du modèle PTT où l’Etat produisait le service public, au modèle d’État-régulateur qui a permis l’ouverture à la concurrence. Ce modèle vise à une bonne organisation du marché avec des outils de pilotage efficaces, mais parfois très intrusifs : les licences mobiles, qui sont des contrats assortis de sanctions administratives en cas de non-respect des obligations, ou le dégroupage, qui est une intervention sur la propriété privée… Aujourd’hui il nous faut franchir une étape nouvelle et nous projeter dans la suite, repenser nos outils pour permettre, en complément, une régulation plus focalisée, plus humble et plus agile". We can translate this passage as it follows : “As of today, considering the onset of digital, we are getting to a second phase for Regulation. Over the past 20 years, we went from the ‘PTT model’, where the State provided for public service, to a new Regulatory State model that enabled competition to thrive. This model aims for good market organization with effective management tools, which may be sometimes very intrusive: e.g., mobile licenses, which are agreements that include administrative penalties in the event of failure to comply with its provisions, or unbundled access, which relates to a State intervention on private ownership… Today, we need to take it another step further and plan for the future, reconsider our tools to allow for a Regulation that would be better focused, humbler and nimbler”.
Whatever “Phase 1” was would thus be already outpaced. Farewell stringent public service, so long market openings to competition. Such an understanding of Regulation was certainly consistent with the idea that Regulation was only meant to be temporary, namely considering the everlasting protection of personal data by the dedicated supervisory authority (Commission Nationale Informatique et Libertés, CNIL)…
We would then need to implement “Phase 2” and, as Sébastien Soriano advises, to “Regulate by the multitude”, which is "a concept that includes consumers, but also users, observers, and the civil society as a whole. The key question is how to use the power of information to get the greatest possible leverage on the market while relying on the multitude. The answer is clear: Regulation by data"("La multitude, ce sont les utilisateurs, les observateurs, la société civile. Cela inclut les consommateurs, mais pas uniquement. Et la question centrale, c’est comment utiliser le pouvoir de l’information pour avoir un maximum d'effet de levier sur le marché et grâce à la multitude. La réponse, c’est la régulation par la data.").
Like all the others, the Telecom Regulator introduces himself as a sort of ‘natural’ Regulator for digital activities, as he relies on the key notion that is information. In doing so, he is seeking allies that are just as natural as he is— that is to say, consumers. Consumers fall indeed into the scope of the Regulator insofar as they provide him with the information he needs to Regulate the digital sector and space.
The Regulator thus does not define himself anymore as the one that protects consumers against the market, but as the one that binds the two together, transforming the complaint into a civic act: “There’s a problem. As a consumer, I am alerting you as a Regulator who has the means to regulate market failures and whom I shall let operate”.
In such a statement, the ARCEP not only becomes the ‘natural’ digital Regulator, but it also become the one that operates on the grounds of information brought by the web-user, who is protected by and who somehow benefits in return from the action of the Regulator.
Two concluding thoughts:
What a nimble reasoning indeed from the Regulator, who had initially been created to be the ‘container Regulator’, and who is now becoming, since Phase 2 is on its way, a kind of ‘overall’ Regulator that regulates both the container and the content.
This is a salient example that rationales and frameworks that were developed by the Banking and Financial Regulation are modelling Regulation in general: see whistleblowers, information, obsolescence of the ‘public service’.
The concept of 'agency', sometimes confused with the one of 'Regulator', designates a way of deconcentrating the State. Away from a Jacobin outlook, states have indeed gradually devolved their sovereign responsibilities to other institutions, which are often geographically distant from the state's political capital city. These agencies are a form of technical decentralization because they are in charge of operational tasks and specific expertise, e.g., as regards employment, environment or health issues. This model, which is very common in Scandinavian countries, is often associated with federal outlooks, like in the United States. It is still fairly remote to the French model that remains to this day built on the idea of a centralized state. So far, France has only developed a few agencies (e.g., France Trésor, tasked with managing France's government debt and cash positions, or the Regional Health Agencies).
In a different perspective, although the two notions are homonyms, the American financial theory developed the notion of 'agency' to describe the relationship between the corporate officer (the agent) and the shareholder (the principal), who empowers the first to act on his behalf to serve his interest. Information asymmetry and conflict of interest mark this relationship, which explains that this theory helped developing multiple safeguards, conveyed by the Financial Regulation.
This conference aims to better understand the legal mechanisms for international regulatory mechanisms of water, especially in view of climate change, to articulate the role of states and private investment contracts, to understand the legal nature of water as a "resource" but also as "human right" especially in view of the determination of its price, and to mesure the legal consequences of globalization on the matter.
On 22nd of September 2017, Transport of London (TFL), London Transport Regulator, refused to renew the licence, granted on 31st of May 2012 for 5 years, authorizing Uber to transport people because of criminal offenses committed by Uber's drivers. On 26th of June 2018, The Westminster Court prolonged Uber's licence for 15 months under the condition that the platform prevent the reproachable behaviors of its drivers. After these 15 months, the TFL refused once again to prolonge Uber's licence because of the persistence of aggressions against passengers. Uber, once again, contest this decision before the Westminster Court.
In a decision of 28th of September 2020, the Court observes that during the 15 months, the platform implemented many measures to prevent aggressions, that the level of maturity of these measures has improved over time and that the number of offenses was reduced over the period (passing from 55 in 2018 to 4 in 2020). The Court estimated the the implementation of this actions is sufficient to grant a new licence to Uber.
We can learn three lessons from this decision:
The Compliance obligation is not a result obligation but a mean obligation, which means that it is not reasonable to expect from a crucial operator (Uber, for instance) that it prevent every cases of agression but that it is salient to judge it on the effort it deploys to try to be closer to this ideal situation. Moreover, the crucial operator must be proactive, that is going away from the figure of passive subject of Law who apply measures enacted by the regulator in terms of fighting against aggressions to be an actor of the research of the best way to fight abusive behaviors, internalizing this "monumental goal.
The judge appreciates the violation committed by those whose the firm is responsible "in context", that is evaluates the concrete situation in a reasonable way.
It is the judge who decides in last resort and like the crucial operator, it must be reasonable.
